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[2012] ZAGPPHC 29
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S v Senyola (A133/2012) [2012] ZAGPPHC 29 (2 March 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
no: A133/2012
Date delivered:02/03/2012
TO:
MAGISTRATE: RITAVI
High
court ref no. 1292 \
Magistrate
serial no. 41/2011
Case
no.A 303 /2011
In
the review matter:
STATE
v MR MASILODAVID SENYOLA
REVIEW
JUDGMENT
LEGODI
J,
When
this matter was initially laid before me on automatic review, I
raised the following issues with the Director of Public Prosecutions:
1.The
accused appeared in the Magistrate's Court Ritavi charged with
contravention of a maintenance order.
2.
His plea of guilty was changed to that of not guilty,
3.
The state, after the plea was changed, decided to close its case
after having handed in proof of the court order and amount
outstanding.
4.
The state elected to do this, despite the fact that the accused had
indicated as a defence that, he had been paying direct to
the
complainant or beneficiary and that he was made, to believe that the
maintenance order would be cancelled or that it would
not be acted
upon.
5.
After the state had closed its case, the accused took the witness
stand and repeated his defence. He was not cross-examined on
his
defence, neither did the court cause the complainant or beneficiary
to be called.
6.
Can it be said that the state had proved beyond reasonable doubt that
the accused had the necessary intention to disobey a court
order?
7.
It looks like the trial court took a different view, that is, once
non-compliance with the court order was proved, no other defence
in
the circumstances of the case could have been raised. Was this
approach correct?"
I
am greatly indebted to the comments made by the Director of Public
Prosecutions (DPP) in response to the issues raised above.
It is
recommended by the DPP that the conviction and
sentence
be set aside and the matter be remitted to the Magistrate to convert
the proceedings into an enquiry. I agree.
The
accused was arraigned in the Magistrate's court for the district of
Ritavi on a charge of failure to comply with a maintenance
order. The
allegations were that from the 29 August 2008 to 8 September 2011,
the accused did unlawfully and intentionally fail
to comply with a
maintenance order dated the 23 August 2008, in terms of which he was
ordered to pay R800.00 per month. The accused
is said to have been in
arrears in the amount of R20 600.00.
The
accused whilst seeking to plead guilty to the charge, indicated that
the complainant used to receive some money from him and
that although
he paid some money to the Magistrate's office, he used to support the
child without paying directly to the office.
The
complainant is said to have told him that she wanted to cancel the
maintenance order. Thereafter she sent the child to collect
money
from him at his place of employment. He did not know that the
complainant did not cancel the maintenance order.
His
plea of guilt having been changed to that of not guilty, the state
closed its case without leading evidence. This was after
the
prosecutor had handed in proof of the court order.
The
latter was never in issue. The accused took the witness stand and
repeated what he said during the plea stage. Thereafter, he
was
convicted as charged and sentenced to one year imprisonment wholly
suspended on certain conditions.
I
was concerned that not all the elements of the offence have been
proved beyond reasonable doubt, and in particular an intention
to
disobey the maintenance order. Secondly, if indeed the accused had
paid certain amounts or money towards maintenance of his
child in
lieu of the court order, that could be an aspect to consider when
assessing the arrear amounts of maintenance in terms
of the court
order.
As
also highlighted by the Director of Public Prosecutions, section 31
(2) of the maintenance Act provides that before the defence
is raised
in any prosecution for an offence under section 31, that any failure
to pay maintenance in accordance with a maintenance
order was due to
lack of means on the part of the person charged, he or she shall not
merely on the grounds of such a defence be
entitled to an acquittal
if it is proved that the failure was due to his or her unwillingness
to work or misconduct.
What
is provided for under subsection 2 as indicated above, has to be
distinguished from the facts of the present case. The accused
did not
plead inability to pay, but rather that he had been paying direct to
the complainant or to the child and that he had
been
made to believe that the maintenance order would be cancelled.
In
the circumstances of the defence raised, the proceedings for contempt
of court or failure to comply with maintenance order should
have been
converted into an enquiry.
Consequently,
I would make the order as follows:
1.
The conviction and sentence herein are set aside.
2.
The criminal proceedings are hereby converted into a maintenance
enquiry.
3.
The matter is hereby remitted to the Magistrate to proceed with a
maintenance enquiry as envisaged in paragraph 2 of this order.
M
F LEGODI
JUDGE
OF THE HIGH COURT
I
AGREE; IT IS SO ORDERED
N
RANCHOD
JUDGE
OF THE HIGH COURT